HomeMy WebLinkAboutORDINANCES-2012-026-O-12•
2/21 /2012
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AN ORDINANCE
Authorizing the City Manager to Negotiate and Execute
a Commercial Lease with an Option to Purchase
for City -Owned Real Property Located at 629-631 Howard Street
WHEREAS, the City of Evanston owns certain real property located at
629-631 Howard Street, Evanston, Illinois 60202, which is improved with a three-story
brick building (the "Property"); and
WHEREAS, the City Council has determined that it is in the best interests
of the City of Evanston to negotiate and execute a five (5)-year commercial lease
agreement for the first -floor commercial space of the Property, with an option to
purchase the Property, with Ward Eight, LLC,
0 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The foregoing recitals are hereby found as fact and
incorporated herein by reference.
SECTION 2: Pursuant to Subsection 1-17-4-1 of the Evanston City Code
of 1979, as amended (the "City Code"), the City Manager is hereby authorized and
directed to negotiate and execute, and the City Clerk is hereby authorized and directed
to attest, on behalf of the City of Evanston, the lease agreement, by and between the
City of Evanston, as landlord, and Ward Eight, LLC, as tenant, for the first -floor
commercial space on the Property, in accordance with the rental schedule and terms
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provided in the agreement. The lease agreement shall be in substantial conformity with •
the Lease attached hereto as Exhibit "A" and incorporated herein by reference.
SECTION 3: Should Ward Eight, LLC seek to exercise the option to
purchase, the City shall follow the procedure for conveyance by negotiation pursuant to
Subsection 1-17-4-2-(B), as amended.
SECTION 4: If any provision of this ordinance or application thereof to
any person or circumstance is ruled unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 5: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 6: The findings and recitals contained herein are declared to be 0
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 7: This ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
Ayes:
Nays: I
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Introduced. • , 2012
Adopted: , 2012
LT
Attest:
Rod.r(ey Gre e, City Clerk
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Approved:
4� c9 9 , 2012
Eliz th B. Tisdahl, Mayor
Approved as to form:
W. Grant Farrar, Corporation Counsel
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EXHIBIT A - •
LEASE AND OPTION AGREEMENT FOR THE PREMISES LOCATED AT 629-631
HOWARD STREET, EVANSTON, ILLINOIS, BY AND BETWEEN THE CITY OF
EVANSTON, LANDLORD AND WARD EIGHT LLC, TENANT
EFFECTIVE DATE OF LEASE: March 15, 2012
TERM OF LEASE: March 15, 2012 THROUGH March 14, 2017
RENTAL RATE:
FROM March 15, 2012 THROUGH March 14, 2013: FREE RENT (Year 1)
FROM March 15, 2013 THROUGH March 14, 2015: $2,000.00/MO (Year 2 - 3)
FROM March 15, 2015 THROUGH March 14, 2016: $2,250.00/MO (Year 4)
FROM March 15, 2016 THROUGH March 14, 2017: $2,500.00/MO (Year 5)
This Lease and Option Agreement (the "Agreement") is executed by and between
The City of Evanston, an Illinois home rule municipality ("Landlord"), whose main
business office is located at 2100 Ridge Avenue, Evanston, Cook County, Illinois, and
Ward Eight LLC, an Illinois limited liability company ("Tenant" ), of Chicago, Illinois
(insert Tenant's present address). Landlord and Tenant may be referred to as a "Party"
and collectively as the "Parties". •
SECTION 1: DESCRIPTION OF PREMISES
Landlord leases to Tenant the commercial area on the first floor of the property
commonly known as 629-631 Howard Street (the "Premises"), situated within the
Landlord's 3 story mixed use building located at the same common address and legally
described on Exhibit "A" (the "Property"). The Property has two residential units on the
second and third floors and the Premises is the commercial unit on the first floor. The
term "Common Facilities" as used in this lease will include those facilities within the
Premises for the nonexclusive use of Tenant in common with other authorized users,
and includes, but is not limited to, sidewalks, planted areas, and open means of ingress
and egress.
SECTION 2: TERM
The term of this lease will be for five (5 years) and will start on March 15, 2012 —
March 14, 2017. Tenant must provide Landlord with 60 days notice if they choose to
renew the lease of the Premises.
SECTION 3: RENT
A. RATE: Tenant agrees to pay Landlord a monthly rental payment for •
the term of this Agreement in accordance with the rental rate schedule outlined on the
first page. The rent is due and payable on the first day of each month.
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• B. LATE CHARGES. ANY PAYMENTS FOR RENTAL OR ADDITIONAL
RENTAL NOT PAID WITHIN FIVE (5) DAYS OF THE DUE DATE SHALL INCUR A
LATE PAYMENT OF $10.00 PER DAY UNTIL PAID IN FULL.
C. PAYMENTS shall be mailed to: City of Evanston
Attn: Dept of Administrative Services
2100 Ridge Avenue, Room 4100
Evanston, IL 60201
D. RENT COMMENCEMENT: Tenant's obligation to pay any money
will not commence until the 1st day of the earlier of the completion of the tenant
improvements outlined on Exhibit "B", Site Plan ,and a certificate of occupancy is issued
or four months after the Effective Date of this Lease (the "Rent Commencement").
However, the schedule provided on the first page commences on the first date that
Tenant receives all permits, variances and governmental approvals necessary to
construct and operate Tenant's wine bar in the Premises (the "Rent Commencement
Date"). Tenant warrants they will use best efforts to complete construction on the
Tenant Improvements, obtain a business license, obtain a liquor license from the City
of Evanston and the State of Illinois, and open for business within 4 months of the
Effective Date.
• SECTION 4: COMMON FACILITIES
A. MAINTENANCE BY LANDLORD: Landlord will maintain in good repair the
common and structural facilities of the Property which shall include but not be limited to
the following:
1. Exterior maintenance, including the foundation,. walls, slab, doors and
roof and replacement;
2. A refuse container to be shared by all tenants in the Property;
3. Common electric facilities and the HVAC unit(s);
4. Common water facilities;
5. Fire Alarm inspections for the common facilities and Property; and
6. Hallways, stair rails, and related elements outside of the Premises within
the Property.
B. MAINTENANCE BY TENANT:
1. Snow and ice removal, including salting, from front walkway of Premises
and parking spaces behind the Property within 24 hours of any snow event with
accumulation of an 1 inch or more. Tenant will furnish snow removal equipment
and salt.
• 2. Premises maintenance and all fixtures and property within the space;
3. All refuse from Premises to be placed in appropriate containers; and
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4. The Tenant will at all times maintain all of the Premises in a clean, neat •
and orderly condition. The Tenant will not use the Premises in a manner that
will violate or make void or inoperative any policy of insurance held by the
Landlord.
SECTION 5: SECUR17 Y DEPOSIT
Concurrently with the execution of this Lease, Tenant shall deposit with Landlord
the sum of Two Thousand and 001100 Dollars ($2,000.00). Said sum shall be held by
Landlord as security for the performance of all terms, covenants and conditions of this
Lease to be performed by Tenant. If Tenant defaults with respect to any provisions of
this lease, Landlord may at her option apply all or any portion of such deposit to
compensate Landlord for any loss or damage it may sustain. Landlord shall not be
required to keep this security deposit separate from its general funds and Tenant shall
not be entitled to any interest on such deposit. At the termination of this Agreement
Landlord shall refund the said security deposit to Tenant. In the event Tenant has
breached any of the terms, covenants and conditions of this Agreement or fails to leave
the premises in substantially the same condition as when Tenant took possession,
normal wear and tear excepted, Landlord shall be entitled to deduct from the security
deposit the amount expended by Landlord for necessary and reasonable repairs
Tenant shall not use the security deposit as the last month's rental payment. The
Landlord shall itemize the deductions from the Security Deposit, if any.
SECTION 6: OPTION TO PURCHASE PROPERTY: •
A. GENERAL: Tenant initially is only a Tenant of the Premises which is
owned and managed by Landlord. The Landlord owns the Property, on which the
Premises is located. As such, Tenant's monthly payments are lease and rental
payments. However, under the Landlord's terms of this Agreement, the Tenant has an
option to purchase the Property so long as the Tenant is, occupying and leasing the
Property and is otherwise in compliance with Landlord's program rules after the end of
the third year (the "Option"). Tenant must submit written notification to Landlord that it
intends to exercise the Option within 90 days of expiration of the third year, thus notice
must be sent on or before the beginning of the 33`d month of the Lease. If Tenant elects
to NOT exercise the Option prior to the end of the third year of this Agreement, the
following are applicable: (1) the Landlord is freely able to market, enter into a contract,
and sell the Property to another purchaser; (2) Tenant shall remain a Tenant of the
Premises for the remainder of the term of the Agreement; and (3) Tenant shall not have
another option beyond the third year to purchase the Property at the end of the Term.
B. PURCHASE PRICE: The purchase price of this Property will be
$362,650.00 (the "Purchase Price"), which is based on the fair market value and
current appraisal of the Property and the actual cost of tenant improvements (see
Section 8) on the date of exercising the option and corporate authority decision. The
Purchase Price is based on the amount of the original purchase price that the City paid •
for the property ($237,650.00), the CDBG funds anticipated to be used for the
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• renovation of the residential units ($40,000.00), and part of the estimated Tenant
Improvement Allowance (defined supra).
C. CASH USED ALONE TO PURCHASE: The Tenant may notify Landlord
that they have the resources to purchase the Property and that the Tenant is exercising
the Option prior to the expiration of the Agreement. A closing or transfer of ownership
will occur upon the Tenant paying the purchase price and the Parties execution of a
purchase and sale contract ("Property Purchase Agreement').
D. RENTAL CREDITS USED TO PURCHASE: Credit will NOT be given
for residential rent payments, made to Landlord pursuant to the Lease Agreement
between Landlord and Anne Carlson and Cody Modeer, for the Option. The Landlord
will only give credit towards the purchase price for rent payments made under this
agreement for the lease of the Premises subject to this Agreement (the "Rental
Credit").
E. CASH AND RENTAL CREDIT USED TO PURCHASE: The Tenant may
notify Landlord that they will be exercising the Option to Purchase and that they wish to
use the Rental Credit and have the resources to supplement those credits to purchase
the Property. A closing and transfer of ownership will occur upon the Tenant paying the
difference between the rental credit and the purchase price.
F.' DELINQUENCIES: Should the Tenant have iricWT66 delinquencies with
Landlord, the Tenant will be required to payoff those delinquencies upon any offer to
exercise its Option.
G. TENANT BREACH: Should the Tenant breach this Agreement for any
reason other than nonpayment, at the discretion of Landlord, the Tenant's Option may
be denied.
H. LANDLORD REPORTING: So long as Tenant is leasing the Premises,
Landlord shall provide at the Tenant's request, approximately every year, a written
accounting of the rent paid on the Premises, any delinquencies owing, and the Property
purchase price. However, except for the above, Landlord is not obligated to advise the
Tenant when the Rental Credit equals or exceeds the purchase price.
I. PROPERTY SOLD: If the Property is purchased by the Tenant, the
maximum interest that Landlord has in the land and structures in accordance with the
Property PIN as indicated on Exhibit "A", and will be transferred pursuant to the
Property Purchase Agreement.
J. NO OBLIGATION TO PURCHASE THE PROPERTY: A Tenant is under
no obligation to purchase the Property and has the right to continue under the terms of
• this Agreement as Tenant/renter. However, if the Tenant fails to exercise his or her
option at the conclusion of this Agreement, the Option to Purchase shall expire.
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K. NO LANDLORD RESPONSIBILITY AFTER PURCHASE: Upon sale to •
Tenant pursuant to this Agreement, the Tenant shall become solely responsible for the
Property.
SECTION 7: USE OF PREMISES
A. PURPOSES: Tenant will use the Premises to operate a wine bar and sell
alcohol products and transaction of other related business and uses incidental thereto,
and no part of the Premises will be used for any other purpose without the prior written
consent of Landlord. The use of the premises will be in conformance with the
restrictions set forth in the Class S Liquor License granted to the Tenant's by the City of
Evanston corporate authorities. Prior to the issuance of a business license, the Tenant
shall submit copies of final lien waivers to Landlord from Tenant's contractors and
subcontractors for the tenant improvements.
B. BUSINESS HOURS: Tenant will operate the Premises and be open for
business at the discretion of the Tenant. When Tenant is open for business, Tenant will
provide adequate personnel to service its customers. However, if Tenant is unable to
comply with this provision due to shortage of materials, act of God, and destruction of
the premises by fire or other reason beyond Tenant's control (financial inability of
Tenant accepted), Tenant will not be deemed to be in default.
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C. STORAGE ._.....
ORAGE OF MERCHANDISE: Tenant agrees to store on the Premises
only goods, wares and merchandise Tenant intends to offer for retail sale from the •
Premises or use in connection with the service offered by Tenant in regular course of
the named Tenant's business. Tenant agrees to use for office or clerical purposes only
that space as is reasonably required for Tenant's business. In the basement of the
Property, storage lockers are available for the tenants to the Property. For the
Premises, Tenant shall be entitled to the use of one (1) storage locker. Tenant shall be
responsible for providing a lock for the storage locker. Landlord is not responsible for
any lost or stolen items from the storage locker.
D. STORAGE OF INFLAMMABLE MATERIALS: Tenant agrees that it will not
permit to be kept at the Premises any gasoline, distillate or other petroleum product, or
other substance of an explosive or inflammable nature as may endanger any part of the
premises without the written consent of the Landlord.
E. USE IMPAIRING STRUCTURAL STRENGTH: The Tenant will not permit the
Premises to be used in any manner that will impair the structural strength of the store
building, or permit the installment of any machinery or apparatus the weight or vibration
of which may tend to impair the building's foundations or structural strength.
F. GARBAGE DISPOSAL: The Tenant will not incinerate any garbage or debris
in or about the Premises, and will cause all containers, rubbish, garbage and debris is
in the Premises to be hauled away for disposal before accumulation of any
substantial quantity.
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• G. PUBLIC REGULATIONS: In the conduct of its business on the Premises,
Tenant will observe and comply with all laws, ordinances and regulations of public
authorities. Tenant acknowledges that the Property is owned by the City of Evanston
and therefore no smoking will be permitted at the Property.
H. OTHER MISUSE: Tenant will not permit any unlawful or immoral practice with
or without his knowledge or consent, to be committed or carried on in the Premises by
Tenant or any other person. Tenant will not use or allow the use of the Premises for
any purpose whatsoever that will injure the reputation of the Premises or of the building
of which they are a part.
1. PARKING: Tenant shall not be entitled to a parking spot in the back of the
Property as part of this Lease Agreement. As stated in the Residential Lease, the
Tenant is entitled to one (1) parking spot for the residential leased premises.
SECTION 8: IMPROVEMENTS.
A. FINANCING STATEMENT: The City will record a Uniform Commercial
Code ("UCC") Financing Statement against the Property for the fixtures, business
equipment, and other personal property to be installed at the property pursuant to the
site plan (the "Site Plan"). The Financing Statement will secure the Landlord's loan, as
detailed in Section 9 to -Tenant -for the improvements to the Premises. The Tenant will
• also be required to execute a security agreement which details the terms and
conditions that the Landlord can lien the fixtures, business equipment, and personal
property (the "Security Agreement"). The terms and conditions of the Security
Agreement shall be incorporated into the Lease herein by reference.
B. INSTALLATION OF EXTERIOR LIGHTING AND FIXTURES: Tenant will
not install any exterior lighting, exterior plumbing facilities, shades or awnings,
amplifiers, or similar devices, or use any advertising medium that may be heard outside
the Premises, such as loudspeakers, or radio broadcasts, without Landlord's prior
written consent.
C. IMPROVEMENT INSTALLATION AND ALLOWANCE:
1. Improvement Allowance: Landlord shall provide Tenant with an
improvement allowance to renovate the Property in the principal amount of
no greater than $100,000.00, the final amount to be determined based on
the architecture drawings, scope of work, and cost projections (the "Tenant
Improvement Allowance"). The Tenant Improvement Allowance shall be
approved by the City Manager prior to any construction. This
Improvement Allowance shall NOT be paid out directly to the Tenant and
not be funded until: (a) City of Evanston Council has approved the
Agreement; (b) the Agreement is executed; and (c) Final improvement
is plans attached as Exhibit "B" are accepted by both Parties. The Landlord,
as administrator of the grant, shall pay the contractors for the
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improvements directly in accordance with a separate TIF Grant •
Agreement, the terms of which are incorporated herein by reference. The
Improvement Allowance is funded through the Howard -Ridge Tax
Increment Financing (TIF) District.
2. Construction of Improvements: The Tenant shall contract for the
construction of the improvements. The improvements shall be in
substantial conformance with the attached plans on Exhibit "B" (the
"Tenant Improvements"). Any variation from the plans shall be first
approved by the Landlord. Landlord shall not unreasonably withhold its
consent for approval of the revised plans.
D. Subject to the improvements provided on Exhibit "B", Tenant shall not
attach, affix or exhibit or permit to be attached, affixed or exhibited, except by Landlord
or his agent, any articles of permanent character or any sign, attached or detached with
any writing or printing thereon, to any window, floor, ceiling, door or wall in any place in
or about the Premises, or upon any of the appurtenances thereto, without in each case
the written consent of the Landlord; and shall not commit or suffer any waste in or
about said Premises; and shall make no changes or alterations in the Premises by the
erection of partitions or the papering of walls or otherwise, without the consent in
writing of Landlord; and in case Tenant shall affix additional locks or bolts on doors or
window, or shall place in the Premises lighting fixtures or any fixtures of any kind
without the consent of the Landlord first had and obtained such locks, bolts and fixtures
shall rernairi for the benefit of Landlord, aiid without expense of removal or
maintenance to Landlord.
SECTION 9: CDBG LOAN TO TENANT: The City shall provide a 10-year
loan to the Tenant in the principal amount of up to $130,000.00 (One Hundred Thirty
Thousand and no/100 Dollars), together with interest on the unpaid principal balance
from August 15, 2012, until paid in full. Borrower (Tenant) will pay this loan in 120
regular payments of $1,316.19 each. The loan shall be repaid at the earlier of the
following two dates: (1) after the date of termination of this Lease, without the Tenant
exercising its option to purchase; or (2) at the conclusion of the 120th month. The loan
terms are more specifically provided in the promissory note to evidence the
indebtedness (the "Note"). The Note will be secured by the fixtures and personal
property to which the City will be filing a UCC Financing Statement, as provided in
Section 8. Additionally, the CDBG Loan shall be administered in accordance with the
guidelines and requirements provided in a project agreement between the City and its
Borrower (the "Project Agreement"). The Project Agreement and Note terms shall be
incorporated into the Lease herein by reference.
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SECTION 10: SIGNS: Tenant will have the exclusive right to maintain on the
exterior and interior of the Premises, at its own expense, all signs necessary to conduct
the business of Tenant. Tenant acknowledges that there are limitations from the City of
Evanston's Municipal Code for the sign size, type, and number and Tenant agrees to be
bound by such laws and ordinances. is
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•SECTION 11: DEFECTS; DEFECTIVE CONDITION; WIND; ACTS OF THIRD
PERSONS; Except as provided by Illinois law, Landlord will not be liable to Tenant for
any damage or injury to Tenant or Tenant's property occasioned by the failure of
Landlord to keep the Premises in repair, and shall not be liable for any injury done or
occasioned by wind or by or from any defect of plumbing, electric wiring or of insulation
thereof, gas pipes, water pipes or steam pipes, or from broken stairs, porches, railings
or walks, or from the backing up of any sewer pipe or down -spout or from the bursting,
leaking or running of any tank, tub, washstand, water closet or waste pipe, drain, or any
other pipe or tank in, upon or about the Premises or the building of which they are a
part nor from the escape of steam or hot water from any radiator, it being agreed that
said radiators are under the control of Tenant, nor for any such damage or injury
occasioned by water, snow or ice being upon or coming through the roof, skylight, trap
door, stairs, walks or any other place upon or near the Premises, or otherwise, nor for
any such damage or injury done or occasioned by the falling of any fixture, plaster, or
stucco, nor for any damage or injury arising from any act, omission or negligence or co-
tenants or of other persons, occupants of the same building or of adjoining or
contiguous buildings or of owners of adjacent or contiguous property, or of Landlord's
agents or Landlord, all claims for any such damage or injury being hereby expressly
waived by Tenant.
SECTION 12: CASUALTY DAMAGE; REPAIRS; ABATEMENT OF RENT
A: USE OF PARTIALLY DAMAGED PREMISES: On damage or destruction to the
. Premises, Tenant will continue to use them for the operation of its business to the
extent practicable.
B. RIGHT TO TERMINATE ON DESTRUCTION OF TWO-THIRDS OF PREMISES:
Either Party will have the right to terminate this Agreement if, during the last year of the
term, the Premises is damaged to an extent exceeding two-thirds of the reconstruction
cost of the Premises as a whole. On termination, this Agreement will be affected by
written notice to the other Party, delivered within ten days of the damage.
C. REPAIRS BY LANDLORD: If the Premises are damaged or destroyed before or
after the start of the Agreement by any cause beyond Tenant's control, then Landlord
will immediately, on receipt of insurance proceeds paid in connection with casualty
damage, but no later than sixty days after damage has occurred, proceed to repair the
premises. Repairs will include any improvements made by Landlord or by Tenant with
Landlord's consent, on the same plan and design as existed immediately before the
damage occurred, subject to those delays reasonably attributable to governmental
restrictions or failure to obtain materials, labor or other causes, whether similar or
dissimilar, beyond the control of Landlord. Materials used in repair will be as nearly like
original materials as reasonably procured in regular channels of supply. Wherever
cause beyond the power of the party affected causes delay, the period of delay will be
• added to the period in this lease for completion of the work, reconstruction or
replacement.
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D. REDUCTION OF RENT DURING REPAIRS: If Tenant continues to conduct •
business during the making of repairs, the fixed minimum monthly rental will be
equitably reduced in the proportion that the unusable part of the premises bears to the
whole. The determination of the unusable space shall be determined by the Landlord
based on square footage. No rent will be payable while the store building is wholly
unoccupied pending the repair of casualty damage.
SECTION 13: REPAIRS AND MAIiVTENAiVCE
Tenant shall keep the Premises and appurtenances thereto in a clean condition,
and in good repair, all according to the statutes and ordinances in such cases made
and provided, and the directions of public officers thereunto duly authorized, all at
Tenant's own expense, and shall yield the same back to Landlord, upon the termination
of this Agreement, whether such termination shall occur by expiration of the term, or in
any other manner whatsoever, in the same condition of cleanliness, repair and
sightlines as at the date of the execution hereof, loss by fire and reasonable wear and
tear excepted. Tenant shall make all necessary repairs and renewals upon Premises
and replace broken globes, glass and fixtures with material of the same size and
quality as that broken and shall insure all glass in windows and doors of the Premises
at his own expense. If, however, the Premises shall not thus be kept in good repair
and in a clean, and healthy condition by Tenant, as aforesaid, Landlord may enter the
same, or by Landlord's agents, servants or employees, without such entering causing
or constituting a termination of this Agreement or an interference with the possession of
e Pf6mises y Tenant, and Landlord may replace the sarrie in the same condition of
repair, sightlines, healthiness and cleanliness as existed: at the date of execution
hereof, and Tenant agrees to pay Landlord, in addition to the rent hereby reserved, the
expenses of Landlord in thus replacing the Premises in that condition. Tenant shall not
cause or permit any waste, misuse or neglect of the water, or of the water, gas or
electric fixtures.
Tenant will, at Tenant's expense, maintain all of the demised Premises, including
but not limited to, store fronts, bulk -heads, exterior entry and exit doors, ornamental
facing, plate glass and glazing on the demised Premises, in good condition and repair.
Tenant will also be in compliance with all laws and regulations during the entire term of
this Agreement, except for repairs required of the Landlord to be made and damage
occasioned by fire, hurricane or other causes as provided for in this Agreement.
SECTION 14: UTILITIES
Tenant agrees to pay- before delinquency all charges for gas, water, heat,
electricity, power and other similar charges incurred by Tenant during its occupancy of
the Premises.
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SECTION 15: TAXES
Tenant will pay before delinquency all taxes levied on Tenant's fixtures,
equipment and personal property on the demised Premises, whether or not affixed to •
the real property. Landlord will prorate the real estate taxes for the Property based on
the proportionate share of the square footage of the Premises (the "Premises Real
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• Estate Taxes"), which is equal to thirty three percent (33%). The Landlord will invoice
the Tenant for the Premises Real Estate Taxes and payment must be received within 30
days of the date of the invoice. The amount of the Real Estate Taxes owed will
fluctuate based on Cook County assessments.
SECTION 16: INSURANCE
A. INSURANCE COMPANIES: It is agreed that any policies of insurance to be
maintained by the respective parties will be obtained from good and solvent insurance
companies.
B. TENANT TO OBTAIN LIABILITY INSURANCE: Tenant agrees that it will, at
its expense, maintain a policy of insurance, written by responsible insurance carriers,
approved by Landlord that will insure Landlord against liability for injury to or death of
persons or damage to property. occurring about the demised Premises. The liability
under insurance will be at least $1 million for any one person injured or killed or any one
occurrence, $2 million general aggregate coverage for any one accident, and
100,000.00 property damage.
C. TENANT TO OBTAIN WORKER'S COMPENSATION INSURANCE: Tenant
agrees to maintain employees' Worker's Compensation insurance required under Illinois
law, and any other insurance necessary to protect Landlord against liability to person or
property...
• D. TENANT TO OBTAIN FIRE INSURANCE ON FIXTURES AND
INVENTORY: The Tenant agrees to maintain on all equipment in the Premises, a policy
of fire insurance in companies approved by the Landlord of at least 80 % of the
insurable replacement value. Tenant also will maintain adequate inventory insurance,
the proceeds of which will, as long as this Agreement is in effect, be used for the
replacement of the insured property. The policy will name Landlord as additional
beneficiary to protect Landlord's interest as Landlord.
E. LANDLORD TO OBTAIN FIRE INSURANCE ON PREMISES: Landlord
agrees to maintain during this Agreement, a policy fire insurance of at least 80 % of
the insurable value of the Premises. If permitted without additional charge, Landlord will
cause to be endorsed on its fire insurance, and any extended coverage policy or
policies, the waiver of right of subrogation.
F. TENANT'S WAIVER OF CASUALTY INSURANCE PROCEEDS: If the
Premises are damaged by fire or other casualty insured against, Tenant agrees to claim
no interest in any insurance settlement arising out of any loss where premiums are paid
by Landlord, or where Landlord is named as sole beneficiary, and that it will sign all
documents required by Landlord or the insurance company necessary in connection
with the settlement of any loss.
• . G. CONTROL OF INSURANCE PROCEEDS TO AVOID TAXABLE GAIN: If
the Premises, including any improvements, were to be damaged in any manner, and the
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receipt of any insurance proceeds or other reimbursement for such damage would •
result in the realization of taxable gain for federal or state purposes, then the party to
whom the gain would be taxed will have the right to take all action respecting proceeds
or reimbursements necessary to enable party to comply with any regulations of the
appropriate taxing authorities, so that the gain will not be recognized for tax purposes.
Nothing here will be construed to entitle Landlord to delay any repairs to any part of the
improvements in the event of damage.
H. TENANT'S FAILURE TO INSURE: Should Tenant fail to keep in effect and
pay for insurance as required by this section, the Landlord may do so.
SECTION 17: SUBLETTING; ASSIGNMENT
The Premises shall not be sublet in whole or in part to any person other than
Tenant, and.Tenant shall not assign this Agreement to any person or corporate entity,
unless directly affiliated with a corporate entity of Tenant. If Tenant, or any one or more
of the Tenants, if there be more than one, shall make an assignment for the benefit of
creditors, or shall be adjudged a bankrupt, Landlord may terminate this Agreement, and
in such event Tenant shall at once pay Landlord a sum of money equal to the entire
amount of rent reserved by this Agreement for the then unexpired portion of the term
hereby created as liquidated damages. At Landlord's option, should Landlord consent
to any assignment or sublease of the demised Premises, Tenant shall nevertheless
remain liable for all terms and conditions of this Agreement until the expiration of the
Agreement term stated above.
SECTION 18: SURRENDER OF PREMISES — HOLDING OVER •
Subject to the Option to Purchase language, Tenant will, at the termination of this
Lease, leave the Premises in as good condition as they are in at the time of entry by
Tenant, except for reasonable use and wear, acts of God, or damage by casualty
beyond the control of Tenant. On vacating, Tenant will leave the Premises clear of all
rubbish and debris. If Tenant retains possession of the Premises or any part thereof
after the termination of the term by lapse of time or otherwise, then Landlord may at its
option within thirty days after termination of the term serve written notice upon Tenant
that such holding over constitutes the creation of a month to month tenancy, upon the
terms of this Agreement. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant. The provisions of this
paragraph shall not constitute a waiver by Landlord of any right of re-entry as
hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmation
of tenancy operate as a waiver of the right to terminate this Agreement for a breach of
any of the covenants herein.
SECTION 19: INDEMNIFICATION AND LIENS
A. LIENS AND ENCUMBRANCES: The Tenant will hold the Landlord harmless •
from all claims, liens, claims of lien, demands, charges, encumbrances or litigation
arising out of any work or activity of Tenant on the Premises. Tenant will, within sixty
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•(60) days after filing of any lien, fully pay and satisfy the lien and reimburse Landlord for
all resulting loss and expense, including a reasonable attorney's fees. Provided,
however, in the event that Tenant contests any lien so filed in good faith and pursues an
active defense of said lien, Tenant shall not be in default of this paragraph. However, in
the event of any final judgment against Tenant regarding such lien, Tenant agrees to
pay such judgment and satisfy such lien within 60 days of the entry of any such
judgment.
B. DISCHARGE OF LIEN: If Tenant fails to fully discharge any claim, lien, claim
of lien, demand, charge, encumbrance, or litigation, or should proceedings be instituted
for the foreclosure of any lien or encumbrance, and if judgment is rendered against
Tenant either by a court of competent jurisdiction or by arbitration and Tenant still
persists in non-payment of the same within the 60 day set forth above, Landlord will
have the right at any time after expiration of the 60-day period, to pay the lien or
encumbrance. All amounts so paid will be repaid by the Tenant on demand, together
with interest at the rate of _10_% per year from the date of payment and shall be
considered additional rent owed to Landlord by Tenant.
C. INDEMNIFICATION OF LANDLORD: Except as otherwise provided in this
Agreement, Tenant shall protect, indemnify and save Landlord and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or -damage to property on the Premises; arising oiit of or ih connection with Tenants use
• or occupancy of the Premises or Tenant's activities on the Premises, or contracts
entered into for work on the Premises, or arising from any negligent or willful act of
Tenant. Tenant shall pay for all of Landlord's costs of suit and attorneys fees and
expenses.
D. INDEMNIFICATION OF TENANT. Except as otherwise provided in this
Agreement, Landlord shall protect, indemnify and save Tenant and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or damage to property on the Premises, arising out of or in connection with Landlord's
negligent act or omission or willful misconduct. Landlord shall pay for all of Tenant's
costs of suit and attorneys fees and expenses.
SECTION 20: LANDLORD'S RIGHT OF INSPECTION AND REPAIRS
Tenant shall allow Landlord or any person authorized by Landlord reasonable
access to the Premises during regular business hours for the purpose of examining or
exhibiting the same, or to make any repairs or alterations thereof which Landlord may
see fit to make. If the Tenant does not exercise the Option and/or will be vacating the
Premises at or prior to the end of the Term, Tenant will also allow Landlord to have
placed upon the Premises at all times notices of "For Sale" and "For Rent", and Tenant
• will not interfere with the same.
SECTION 21: DEFAULT AND REMEDIES
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A. EVENT OF DEFAULT: Any one of the following events shall be deemed to be •
an event of default hereunder by Tenant subject to Tenant's right to cure:
(1) Tenant shall fail to pay within five (5) days, any item of Base Rent
at the time and place when and where due;
(2) Tenant shall fail to maintain the insurance coverage as set forth
herein;
(3) Tenant shall fail to comply with any term, provision, condition or
covenant of this Lease, other than the payment of rent, and shall not cure,
or commence the good faith cure of any such failure, within fifteen (15)
days after written notice to the Tenant of such failure;
(4) Tenant shall make a general assignment the benefit of creditors, or
shall admit in writing its inability to pay its debts as they become due or
shall file a petition in bankruptcy; or
(5) Any default by Tenant under the terms of the Note, Project
Agreement, or Security Agreement.
B' OCC RRENCE OF AN E T pon the occurrence - of ariy event of
default, Landlord sha.11have the option to pursue any one or more of the following •
remedies subject to the laws of the State of Illinois and the Tenants right to cure:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, but if Tenant fails to do so, Landlord
may, without further notice and without prejudice to any other remedy
Landlord may have for possession or arrearages in rent or damages for
breach of contract, enter upon the Premises and expel or remove and with
or without notice of such election or any notice or demand whatsoever,
this Agreement shall thereupon terminate and upon the termination of
Tenant's right of possession, as aforesaid, whether this Agreement be
terminated or not, Tenant agrees to surrender possession of the Premises
immediately, without the receipt of any demand for rent, notice to quit or
demand for possession of the Premises whatsoever and hereby grants to
Landlord full and free license to enter into and upon the Premises or any
part thereof, to take possession thereof with or (to the extent permitted by
law) without process of law, and to expel and to remove Tenant or any
other person who may be occupying the Premises or any part thereof, and
Landlord may use such force in and about expelling and removing Tenant
and other persons as may reasonably be necessary, and Landlord may
re -possess herself of the Premises as of her former estate, but such entry •
of the Premises shall not constitute a trespass or forcible entry or detainer,
nor shall it cause a forfeiture of rents due by virtue thereof, nor a waiver of
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any covenant, agreement or promise in this Agreement contained to be
performed by Tenant. Tenant and its effects, without being liable to
prosecution or any claim for damages therefor; and Tenant agrees to
indemnify Landlord for all loss and damage which Landlord may suffer by
reason of such lease termination, whether through inability to re -let the
Premises, or through decrease in Rent, or otherwise.
(2) Landlord may recover from Tenant upon demand all of Landlord's
costs, charges and expenses, including the fees and costs of counsel,
agents and others retained by Landlord which have been incurred by
Landlord in enforcing Tenant's obligations hereunder, subject to Landlord
prevailing on its claims.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of any
other remedy herein provided or available to Landlord at law or in equity, or
constitute a forfeiture or waiver of any Rent due hereunder or of any damages
suffered by Landlord.
C. REPOSSESSION. OR RELETTING NOT A TERMINATION; LANDLORD'S
RIGHT TO TERMINATE NOT FORFEITED: No repossession, operation or re -letting of
the Premises or of fixtures and equipment will be construed as an election by Landlord
to terminate this Agreement unless a written notice is given by the Landlord to the
Tenant. -.The Landlord may, terminate this Agreement if the Tenant remains in default:. _.
The acceptance of rent, whether in a single instance or repeatedly, after it falls due, or
after knowledge of any breach hereof by Tenant, or the giving or making of any notice
or demand, whether according to any statutory provision or not, or any act or series of
acts except written waiver, shall not be construed as a waiver of Landlord's rights to act
without notice or demand or of any other right hereby given Landlord, or as an election
not to proceed under the provisions of this Agreement.
D. TENANT'S OBLIGATION TO PAY DEFICIENCIES: If rentals received by the
Landlord from re -letting the Premises under the provisions of this section are insufficient
to pay all expenses and amounts due, Tenant will pay any deficiencies to the Landlord
on demand and be declared in default for failure to pay.
E. LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES AT TENANT'S
COST: If in Landlord's judgment any default by Tenant will jeopardize the Premises or
the rights of Landlord, Landlord may, without notice, elect to cure Tenant's default and
Tenant will reimburse Landlord, with interest, on 10-days' notice by Landlord to Tenant.
F. LANDLORD'S RIGHT TO TERMINATE AGREEMENT: If Tenant defaults as
stated in Paragraph A of this section, Landlord may, without further notice, terminate
this Agreement and all interest of Tenant and may take possession of the Premises by
• legal proceedings.
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G. LANDLORD'S RIGHT ON TERMINATION TO RECOVER AMOUNT EQUAL .
TO RENT RESERVED: If this Agreement is terminated by Landlord due to any default
by Tenant, Landlord will be entitled to recover from Tenant, at termination, the excess, if
any, of the rent reserved in this Agreement for the balance of the term over the
reasonable rental value of the Premises for the same period. The "reasonable rental
value" will be the amount of rental Landlord can obtain as rent for the balance of the
term.
H. LANDLORD'S REMEDIES CUMULATIVE: All of the remedies given to
Landlord in this Agreement or by law are cumulative, and the exercise of one remedy by
the Landlord will not impair its right to exercise any other right or remedy.
SECTION 22: INTENTIONALLY DELETED.
SECTION 23: .REMOVAL OF OTHER LIENS
In event any lien upon Landlord's title results from any act or neglect of Tenant
and Tenant fails to remove said lien within ten days after Landlord's notice to do so,
Landlord may remove the lien by paying the full amount thereof or otherwise and
without any investigation or contest of the validity thereof and Tenant shall pay Landlord
upon request the amount paid out by Landlord in such behalf, including Landlord's
costs, expenses and reasonable attorney's fees. If Tenant demonstrates to Landlord
that Tenant is contesting the validity of said lien in good faith, then Landlord shall allow
Tenant -to so contest --such lien -until either Tenant -either abandons such contest or- a
final verdict is reached in a court of competent jurisdiction. Any amount advanced on
behalf of Tenant shall be paid to Landlord by Tenant within 30 days after such
advancement is made together with interest at 9% per annum and such amount shall be
considered additional rentals.
SECTION 24: REMEDIES NOT EXCLUSIVE
The obligation of Tenant to pay the rent reserved hereby during the balance of
the term hereof, or during any extension hereof, shall not be deemed to be waived,
released or terminated, by the service of any five-day notice, other notice to collect,
demand for possession, or notice that the tenancy hereby created will be terminated on
the date therein named, the institution of any action of forcible detainer or ejectment or
any judgment for possession that may be rendered in such action, or any other act or
acts resulting in the termination of Tenant's right to possession of the Premises. The
Landlord may collect and receive any rent due from Tenant and payment or receipt
thereof shall not waive or affect any such notice, demand, suit or judgment, or in any
manner whatsoever waive, affect, change, modify or alter any rights or remedies which
Landlord may have by virtue hereof.
SECTION 25: EXPENSES OF ENFORCEMENT
Tenant, if Landlord is the prevailing party, shall pay upon demand all Landlord's •
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Landlord, incurred in enforcing any of the obligations of
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• Tenant under this Agreement, or in any litigation, negotiation or transaction in which
Landlord shall, without Landlord's fault become involved through or on account of any
action or omission of Tenant regarding this Agreement.
Landlord, if Tenant is the prevailing party, shall pay upon demand all Tenant's
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Tenant, incurred in enforcing any of the obligations of
Landlord under this Agreement, or in any litigation, negotiation or transaction in which
Tenant shall, without Tenant's fault become involved through or on account of any
action or omission of Landlord regarding this Agreement.
SECTION 26: EMINENT DOMAIN
A. MORE THAN 30 PERCENT TAKEN: If 30 percent or more of the Premises
are taken for a public or quasi -public use, this lease will terminate as of the date of the
physical taking, and the Parties will be released from all further liability.
B. LESS THAN 30 PERCENT TAKEN: If the taking affects less than 30 percent
of the Premises, the Landlord will, with reasonable diligence, proceed at Landlord's
expense to repair the Premises and place them in tenantable condition within 120 days
after the date of the actual physical taking. However, if 25% percent or more of the
Premises as a whole is taken, the Landlord may elect to terminate this Agreement,
notwithstanding.. that less than 30-percent.-of the Premises were -taken. -On termination
i the parties will be released from all further liability under this Agreement.
C. ABATEMENT OF RENT: During any repair, Tenant will be required to pay
only that part of the fixed minimum monthly rental as the area of the tenantable
Premises remaining during repairs bears to the entire area leased. On completion of
repairs, the fixed minimum monthly rental will be adjusted in proportion to the repaired
area, and Tenant will be required to pay the adjusted fixed minimum monthly rental in
accordance this Agreement. There will be no abatement of any rent once physical
possession is taken of part of the Premises. The method of computing the percentage
rental will not change, and there will be no reduction of percentage rental.
D. RIGHT TO CONDEMNATION AWARD: Any award made in any
condemnation proceeding for the taking of any part of the Premises will be the sole
property of Landlord.
SECTION 27: GOVERNMENTAL INTERFERENCE WITH POSSESSION
Tenant will not be released from its obligation should its possession of the
Premises be interfered with by adoption of any law, ordinance, resolution, regulation or
act of any legal or governmental authority. Further, Tenant will not be released by any
order of abatement or judgment preventing use of the premises on the ground that the
Premises or the business operated there constitutes a legally recognized nuisance.
SECTION 28: PEACEFUL ENJOYMENT
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Landlord covenants and warrants that, subject to any trust deeds or mortgages of •
record, it is the owner of the Property and Premises, and that Tenant, on payment of
rents and performance of the conditions, covenants, and agreements to be performed
by it, may enjoy the Premises without interruption or disturbance.
SECTION 29: EFFECT OF WAIVER OF BREACH OF COVENANTS
No waiver of any breach of any condition of this Agreement will be construed to
be a waiver of any other breach of provision, covenant or condition.
SECTION 30: TIME OF THE ESSENCE
Time is of the essence.
SECTION 31: AMENDMENTS TO BE IN WRITING
This Agreement may be modified or amended only in writing signed by Landlord
and Tenant. It may not be amended or modified by oral agreements between the
Parties unless they are in writing duly executed by Landlord and Tenant.
SECTION 32: PARTIES BOUND
Every provision of this Agreement will bind the parties and their legal
representatives. The term "legal representatives" is used in its broadest meaning and
includes, in addition to executors and administrators, every person, partnership,
corporation or- association succeeding to any interest in this Agreement: Every
covenant, agreement and condition of this Agreement will be binding on Tenant's •
assignees, subtenants, concessionaires and/or licensees, heirs, administrators and
executors.
SECTION 33: NOTICES
All notices or demands that Landlord may need to serve under this Agreement
may be served on Tenant (as an alternative to personal service) by mailing a copy by
registered or certified mail to the following addresses for the parties:
City of Evanston
Attn: W. Grant Farrar, Corporation Counsel
2100 Ridge Avenue, Rm 4400
Evanston, IL 60201
Cody Modeer and Anne Carlson
631 Howard Street, Unit 2
Evanston, IL 60202
Service will be deemed complete at the time of the leaving of notice or within 2
days after mailing. All notices or demands from Tenant to Landlord may be served on
Landlord at the address where rent is being paid, or at any other address Landlord may
in writing designate to Tenant. In the event that it appears that Tenant is avoiding the
service of any notice and is not present at the Premises for a period of more than 14
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consecutive days, notices may be served by posting such notice upon the Premises.
Notice shall than be deemed effective 5 days after such posting.
SECTION 34: MISCELLANEOUS
Provisions typed on this Agreement and all riders attached to this Agreement and
signed by Landlord and Tenant are hereby made a part of this Agreement. (b) Tenant
shall keep and observe such reasonable rules and regulations now or hereafter required
by Landlord, which may be necessary for the proper and orderly care of the building of
which the Premises are a part. (c) All covenants, promises, representations and
agreements herein contained shall be binding upon, apply and inure to the benefit of
Landlord and Tenant and their respective heirs, legal representatives, successors and
assigns. (d) the rights and remedies hereby created are cumulative and the use of one
remedy shall not be taken to excuse or waive the right to the use of another. (e) The
words "Landlord" and "Tenant' wherever used in this Agreement shall be construed to
mean Landlords or Tenants in all cases where there is more than one Landlord or
Tenant herein; and the necessary grammatical changes shall be assumed in each case
as though full expressed. (f) This Agreement and any written and signed Amendments
and/or Riders hereto shall constitute the entire agreement between the parties, and any
oral representations made by one party to the other are considered merged herein. (g)
In all cases where Landlord's consent is required, Landlord's consent shall not be
unreasonably withheld. (h) This Agreement may be executed in multiple copies, each of
which shall constitute an original.
• SECTION 35: VENUE AND JURISDICTION
CJ
The Parties agree the this Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois and that venue for any disputes shall be
in the Circuit Court of Cook County, Illinois.
[Signatures on following page]
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IN WITNESS WHEREOF, both of said Landlord and Tenant have caused this
Agreement to be executed as of the date and year first above written by a duly
authorized officer or manager of each of the respective parties.
Landlord: THE CITY OF EVANSTON,
an Illinois home rule municipal corporation
By:
Its: City Manager, Wally Bobkiewicz
Tenant: WARD EIGHT LLC,
an Illi is limited liability company
Its: Manager, Ann n�
By. —
Its: Manager, Cody Modeer
•
•
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26-0-12
0
EXHIBIT "A"
LEGAL DESCRIPTION
LOT 6 AND THE EAST 0.62 FEET OF LOT 5 IN BLOCK 1 IN NILES HOWARD
TERMINAL ADDITIONAL, BEING A SUBDIVISION OF THE SOUTH 6.25 CHAINS (412
'/z FEET) OF THAT PART OF THE NORTHEAST % OF SECTION 30, TOWNSHIP 41
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING WEST OF
THE RIGHT OF WAY OF THE CHICAGO AND NORTH WESTERN RAILROAD IN
COOK COUNTY, ILLINOIS.
Real property address: 629-631 Howard Street, Evanston, Illinois, 60202
PIN: 11-30-209-024-0000
is
•
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EXHIBIT "B"
PREMISES IMPROVEMENTS - SITE PLAN
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